IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Benjamin Hendricks, :

Plaintiff, :

v. : Case No. 2:12-cv-729

 : JUDGE MICHAEL H. WATSON

John Kasich, et al., Magistrate Judge Kemp

Defendants. :

REPORT AND RECOMMENDATION

This matter is before the Court to consider plaintiff

Benjamin Hendricks’s motion to voluntarily dismiss the complaint

without prejudice. Defendants have not responded to this motion

and it stands as unopposed. For the following reasons, the Court

will recommend that Mr. Hendricks’s motion be granted. 

I.

The Court’s docket reflects that defendants have filed an

answer in this case and the Court construes Mr. Hendricks’s

motion as brought pursuant to Fed.R.Civ.P. 41(a)(2). That Rule

provides, in relevant part:

By Court Order; Effect. Except as provided in Rule

41(a)(1), an action may be dismissed at the plaintiff’s

request only by court order, on terms that the court

considers proper. ... Unless the order states

otherwise, a dismissal under this paragraph (2) is

without prejudice. 

The decision to grant or deny a voluntary dismissal is

committed to the sound discretion of the trial court. Grover by

Grover v. Eli Lilly and Co., 33 F.3d 716, 718 (6th Cir. 1994). 

Generally, voluntary dismissal without prejudice should be

granted unless the defendant shows that a dismissal will result

in plain legal prejudice. Id. The mere prospect of a second

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lawsuit does not constitute prejudice. Id. Rather, as the

Court of Appeals explained in Grover: 

[i]n determining whether a defendant will suffer plain

legal prejudice, a court should consider such factors

as the defendant’s effort and expense of preparation

for trial, excessive delay and lack of diligence on the

part of the plaintiff in prosecuting the action,,

insufficient explanation for the need to take a

dismissal, and whether a motion for summary judgment

has been filed by the defendant. 

Id.; see also Bridgeport Music, Inc. v. Universal-MCA Music Pub.,

Inc., 583 F.3d 948 (6th Cir. 2009). 

II. 

Here, Mr. Hendricks has been actively prosecuting this case

although the case, as a whole, remains in its early stages. To

date, a scheduling order has not been issued, discovery has not

been undertaken, and summary judgment motions have not been

filed. More significantly, defendants have not filed a response

indicating any prejudice they will suffer as a result of a

voluntary dismissal. Consequently, applying the above standards

to this case, the Court recommends that Mr. Hendricks’s motion

for voluntary dismissal be granted. 

III. 

For the reasons set forth above, the Court recommends that

the motion for voluntary dismissal without prejudice (Doc. 42) be

granted.

PROCEDURE ON OBJECTIONS

 If any party objects to this Report and Recommendation, that

party may, within fourteen days of the date of this Report, file

and serve on all parties written objections to those specific

proposed findings or recommendations to which objection is made,

together with supporting authority for the objection(s). A judge

of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

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recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to object

to the Report and Recommendation will result in a waiver of the

right to have the district judge review the Report and

Recommendation de novo, and also operates as a waiver of the

right to appeal the decision of the District Court adopting the

Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).

 /s/ Terence P. Kemp 

 United States Magistrate Judge

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